' AMIN-UD-DIN KHAN, J. --- Through this appeal appellant has challenged the judgment & decree dated 16.03.2004 passed by the learned Additional District Judge, Lodhran whereby appeal filed by the respondents-defendants was accepted and partial decree of the suit for specific performance in favour of plaintiff-appellant was reversed.
2. Brief facts of the case are that appellant/plaintiff on 12.10.1995 filed a suit for specific performance on the basis of agreement to sell dated 7.10.1984. Written statement was filed.
Agreement was denied. Learned Trial Court framed the issues, invited the parties to produce their evidence. Both the parties produced their oral as well as documentary evidence. Learned Trial Court decreed the suit except 4 kanals, 16 marlas. Defendants being aggrieved by the judgment & decree passed by learned Trial Court dated 28.4.2001 preferred an appeal which was accepted vide judgment & decree dated 16.3.2004. Hence, this second appeal.
3. Learned counsel for the appellant argues that appellant-plaintiff has fully proved his case and the learned first Appellate Court fell in error while reversing the well-reasoned findings recorded by the learned Trial Court.
4. On the other hand, learned counsel for the respondents-defendants argues that as two witnesses have not been produced to prove the agreement to sell, therefore, the findings of learned lower Appellate Court are in accordance with law. Prays for dismissal of the appeal.
5. I have heard learned counsel for the parties at length and gone through the record with their able assistance as well as findings recorded by both the Courts below and the judgments referred by the learned counsel.
6. I have noticed that to prove agreement to sell (Exh.P1) and receipt (Exh.P2) plaintiff-appellant produced PW-1 Muhammad Siddique, Stamp Vendor, who stated that he has sold the stamp of Exh.P.1 on 7.10.1984. He has also stated that the agreement to sell (Exh.P1) and receipt (Exh.P2) are in the handwriting of Shafiq Ahmad Khan as the seat of said Shafiq Ahmad Khan and his seat were adjacent, therefore, he can identify the writing of said Shafiq Ahmad Khan. PW-2 is plaintiff- appellant. He has made statement in support of the case pleaded by him in his plaint. He also stated that Shafiq Ahmad Khan has passed away and he identifies his writing. Stated that since 1984 he is in possession of the suit property. It is also stated that Nazir Ahmad, Vendor used to say that Naik Muhammad witness is his uncle, therefore, he tried to produce Naik Muhammad as witness but he has refused. PW-3 is Abdul Razzaq, who is marginal witness of Exh.P.1 and Exh.P.2 and fully supports the plaintiff-appellant. PW-4 is Allah Bakhsh, who stated that he was present at the time of agreement and writing of the documents Exh.P1 and Exh P2 though he has not been mentioned as witness in these documents but his statement is in support of plaintiff-appellant to prove Exh.P.1 and Exh.P.2. Further defendants-respondents produced Hasnat Ahmad Khan son of Shafiq Ahmad Khan, the Petition Writer. In cross-examination he has admitted that writing of Exh.P1 and Exh.P2 is of his late father. Previous statement of the defendant/vendor has been produced as Exh.P8 where the respondent-defendant has stated that his signatures were procured by the plaintiff on the blank stamp paper and some blank papers. Defendant/vendor when appeared as DW-1 has admitted that he sold 7/8 lots owned by his sister to the present plaintiff. The previous statement of the defendant was confronted to him, which has been produced as Exh.P8, he has admitted the same. Then admitted that plaintiff has installed tube-well in the suit property.
Thereafter stated that the tube-well was owned by the defendant. Defendant admitted that plaintiff has got electricity connection but clarified that with his permission. It is admitted that the same was got installed in the year 1984 and has stated that the electricity connection of tube-well might be in the name of the plaintiff and the plaintiff might be paying the bill. It is the case of the defendant that he got installed tube-well and diesel engine was also got installed. It is stated that in the year 1983 plaintiff sold the engine and no money of sale of engine was paid to him. It is the case of the defendant in the cross-examination that at the same place where the tube-well of plaintiff is available, his tube-well was available. He has stated that in the year 1988 plaintiff forcibly took the possession of the suit land against his will. He has admitted that he has not agitated the matter of forcibly taking over the possession of the suit land by the plaintiff at any forum. He admitted that Naik Muhammad is his relative and he passed away one year ago.
7. The scrutiny of the evidence of the defendants makes it clear that he has not denied the signatures on Exh.P.1 and Exh.P.2. His stance that plaintiff forcibly took the possession of the suit land in the year 1988 and he has not agitated the act of forcibly taking over the possession of the plaintiff, on the other hand, he admits that the electric connection for tube-well was installed in the year 1984 and he has not denied that same is installed in the name of the plaintiff and further that plaintiff is paying the electricity bill since the year 1984. His statement is that the previous engine of tube-well has been sold by the plaintiff and no money has been paid to him nor he has claimed the same.
8. As it has been argued by the counsel for appellants that the agreement to sell is dated 7.10.1984 and Qanoon-e-Shahadat Order, 1984 was promulgated on 30th October, 1984, therefore, same is not applicable in this case. He has relied upon 2002 SCM R 1301 "Noor Muhammad v. Nazar Muhammad". To the extent of agreement to sell Exh.P1 and Exh.P2 it is clear that it was executed prior to the enforcement of Qanoon-e-Shahadat Order, 1984 but admittedly evidence was produced by the parties after enforcement of Qanoon-e-Shahadat Order, 1984. In these circumstances, the statement of PW-4 also has value. Two marginal witnesses were mentioned in Exh.P.1 and Exh.P.2. It is admitted that one of the witnesses namely Naik Muhammad was relative of defendant No. 1 and further that he was no more in this world when the evidence was being recorded. Then in the light of Article 82 of the Qanoon-e Shahadat Order, 1984 the statement of PW- 4 has full value under the said article. Further Exh.P.3, Exh.P4, Exh.P5 and Exh.P6 admittedly bear the signatures of defendant. The request of learned counsel for the appellant that this Court can compare his signatures upon Exh.P.1 and Exh.P.2 with the said document, the prayer is not against the law when the finding of an expert is just an opinion and not binding upon the Court and the Court has full power under Article 84 of the Qanoon-e-Shahadat Order, 1984 to compare the same.
9. The resume of the above discussion is that when on one side case of the defendant that possession of the land was forcibly taken from him in the year 1988 and admission that the electricity connection for Tube-well was got installed by the plaintiff in the year 1984 in his own name and further that the previous diesel engine for running of tube-well was scid by the plaintiff and no money was given to him and the admission of his signatures upon Exh.P.1 and Exh.P.2 which were confronted through Exh.P.8, show that plaintiff was able to prove execution and part performance of agreement to sell (Exh.P.1) and payment of earnest money through receipt (Exh.P.2).
10. Defendant has admitted in his cross-examination that he is F.A. pass and he remained in the job of a bank for some time, which shows that he is not an ordinary villager. If there was no agreement to sell with the plaintiff then taking over of possession by the plaintiff, not agitating the matter by defendant anywhere, plaintiff getting installed the tube-well electricity connection, not denying the same in his statement speaks volume against the defendant. In this view of the matter, the plaintiff was able to prove the valid execution of Exh.P.1 and Exh.P.2. So far as filing of previous suits and their effect is concerned, this matter has been cleared through the question of cross-examination put to defendant that previous suits were prior to conferment of PRs upon the defendant and same were of the nature of permanent injunction etc. It is admitted that suit for specific performance was not previously filed. It is sufficient to hold that previously filing the suit cannot be a hurdle in filing of the present suit for specific performance. In the light of admission niade by the defendant in his cross- examination there is no further need to dilate upon this question. It is also now settled principle of law that agreement to sell with regard to the colony land, proprietary rights of which were not conferred upon the vendor, Section 19 is not a bar. Light can be taken from the judgment of august Supreme Court of Pakistan reported as 2015 SCM R 58 "Commissioner Multan Division, Multan and others v. Muhammad Hussain and others".
11. The finding of the learned first Appellate Court that time was essence of the contract, I am unable to understand that how these findings have been recorded when in the contract of sale of immovable property ordinarily time is not an essence of contract except specifically mentioned in the agreement. The language of the agreement as well as the intention of the parties does not show that the time was the essence of the contract. In this regard also the cross-examination upon defendant who appeared as DW-1 is referable. He admits that at the time of filing of previous suits the proprietary rights were not conferred upon the defendant and same were conferred upon the defendants through Exh.P.3, which shows that mutation of conferment of PRs was passed on 16.7.1995 and the suit in hand was filed on 12.10.1995, therefore, these findings of the learned first Appellate Court are also against the evidence available on the file as well as law. In this regard further light can be taken from PLD 2003 SC 430 "Mst. AminaBibi v. Mudassar Aziz" and 1965 SCMR 690 "Haji Abdullah Khan and others v. Nisar Muhammad Khan and others".
12. In this view of the matter, this appeal is allowed, the findings recorded by the learned first Appellate Court being absolutely against the law are not sustainable, therefore, same are set aside and that of learned Trial Court are restored and partial by the learned Trial Court is maintained in favor of the appellant.